W.P. (C) No. 236 of 2000. Case: Silchar Development Authority Vs Silchar Municipal Board and Ors.. Guwahati High Court
| Case Number | W.P. (C) No. 236 of 2000 |
| Counsel | For Appellant: B.C. Das, D. Mazumder and B.K. Purkayastha, Advs. and For Respondents: S. Dutta, K.K. Dey and D. Barua, Advs. |
| Judges | Aftab H. Saikia, J. |
| Issue | Constitution of India (Seventy - Fourth 1992; Assam Municipal Act, 1956 - Section 15, Assam Municipal Act, 1956 - Sections 171, 171(1); Assam Town and Country Planning Act, 1959 - Section 13; Assam Panchayat Act, 1994 ;Assam Panchayati Raj Act, 1989; Gauhati Municipal Corporation Act, 1971; Gauhati Municipal Corporation (Amendment) Act, 1994; ... |
| Judgement Date | May 16, 2006 |
| Court | Guwahati High Court |
Judgment:
Aftab H. Saikia, J.
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Whether with the incorporation of Part-IXA, especially Article 243ZF, in the Constitution of India by virtue of the Constitution (Seventy-Fourth Amendment) Act, 1992 (for short, 'the Amendment') given effect from 1.6.93 providing for continuance of the existing laws relating to Municipalities unless those are inconsistent with any provision of the Amendment, the proviso to Section 171(1) of the Assam Municipal Act, 1956 (for short, 'the Act') wherein Development Authority, a creation of the Assam Town and Country Planning Act, 1959, has been empowered solely to grant sanction for erection of building within the municipal area prevailing upon the Municipal Board constituted under the Act, shall cease to operate automatically on the expiration of one year of time frame as stipulated in provision of law mentioned hereinabove from the date of commencement of the Amendment i.e. from 30.5.94, is the fundamental question raised in the instant writ petition.
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It would be expedient to notice Section 171(1) of the Act which reads as follows:
Prohibition of building without sanction. (1) No person shall erect, materially alter, or re-erect or commence to erect, materially alter, or re-erect or commence to erect, materially alter or re-erect any building without sanction of the Board:
Provided that in an area in respect of which an authority has been constituted under the Assam Town and Country Planning Act, 1959, the power of giving sanction to erect, materially alter or re-erect or commence to erect, materially alter or re-erect any building shall vest in that authority and the sanction given by that authority shall be deemed to be a sanction of the Board.
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The Petitioner, the Silchar Development Authority (for short, 'the Authority') has challenged the notification dated 27.12.1999 issued by the Chairman, Silchar Municipal Board (for short, 'the Board') (Annexure-B to the writ petition) on the ground that this Notification cannot be sustained in terms of the Amendment by which a new provision as Part-IX a under Chapter VI of the Constitution of India has been inserted with the heading of 'the municipalities' incorporating Articles from 243P to 243SG, as the provisions of the Amendment especially Articles 243W and 243ZF was misinterpreted and misconstrued by the Board.
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For the sake of convenience and ready reference, the impugned Notification may be reproduced as under:
...Notice
The Constitution (Seventy-fourth Amendment) Act, 1992 has been duly enacted. As per twelfth schedule of this amendment certain rights have been conferred on the municipalities and ward committees of which the power of granting permission for purchase and sale of land and creation (sic) of building within the municipal are is worth mentioning.
Through the 74th Constitution Amendment Act, Part IX-A of the Constitution came into force from 1st July, 1993 and the old law would remain in force for one year from that date and thereafter the function would be governed by this constitution Amendment Act.
Although the Silchar Municipal Board is authorized to function as per this Amendment after the expiry of year's period yet inspite of repeated requests from the Silchar Municipal Board to the Assam Government, no law having been enacted the Silchar Municipal Board on 8.12.1999 requested the Assam Government to make proper legislation in exercise of power under Article 243W of the constitution of India. Despite that no steps have been taken by the Government of Assam.
The Silchar Municipal Board is of the opinion that as per Article 243-ZF of the 74th Constitution Amendment Act in the Silchar, Municipal Area, it has sole power to grant permission for purchase and sale of land and for erection of building. Thus it has been unanimously decided in the meeting of the Silchar Municipal Board held on 22.12.99 that from 1.1.2000 the permission for sale and purchase of land and for erection of building would be granted by Silchar Municipal Board. It may be mentioned hat it any authority or person does not obtain the said permission in this regard the sale of land and creation of building could be treated illegal under this Constitution Amendment Act. The Silchar Municipal Board is the only authority to grant permission for purchase and sale of land and erection of building in the municipal area as the 74th Constitution Amendment Act. Sd/-
Chairman
Silchar Municipal Board
Date: 27.12.99 -
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